Week 5: Civil Liberties and Civil Rights

POLSCI 116

Last week

Federalism

What is federalism?
Why do we have a federal system?
How has U.S. federalism evolved over its history?
Who benefits from federalism?

This week

Civil liberties and civil rights

Civil Whats?

What’s the difference?

Generally speaking…

civil liberties: freedoms from government interference
civil rights: equalities guaranteed by government

It’s a little confusing, then, that the Bill of Rights is where we get a lot of our civil liberties.

Bigger Picture

Liberty and equality are two widely-accepted and sometimes-in-tension traditions in U.S. politics and culture.

Big questions in civil liberties and civil rights often ask us to value freedom and equality at the same time and make tradeoffs.

If the answers were easy the questions wouldn’t be interesting.

Think back a few weeks…

The Federalists opposed including a Bill of Rights. Why?

Redundant
- Included in many state constitutions
Unnecessary
- Unalienable rights in the founding
Difficult to enforce
- Would depend on civic norms

Not worth losing the ratification debate over.

Key Rights in the Bill of Rights

Shout some out (we’re going to walk through them).

Two other key amendments:

9th Amendment: just because a right isn’t listed doesn’t mean it doesn’t exist
14th Amendment: equal protection, due process

Incorporation of Due Process to States

14th Amendment extended federal civil rights protections to states…incrementally.

Initial interpretation limited to restrict national government / secure rights to freed slaves.

Incorporation of Due Process to States

Allgeyer v. Louisiana (1897): substantive due process standard

Burden of proof on government (incl. states) to show laws not arbitrary/unjust
Particularly when regulating economic activity (such as contracts)
- This will come up later

Gitlow v. New York (1925)

Issue: Can states prosecute individuals for speech advocating the overthrow of the government?

Holding: Yes, with limits. Sedition laws generally unconstitutional.

Upshot: Formal application of federal free speech protections to state law

Extended to freedom of the press in Near v. Minnesota (1931)

Selective Incorporation

SCOTUS has tended to expand the list of rights deemed fundamental,¹ but it’s taken time

A non-exhaustive list by Amendment:

speech (1925), press (1931), assembly (1937), religion (1940), petition (1963)
individual right to firearms (2008 / 2010!)
lol
warrant requirements (1964), no unreasonable search (1961)
compensation for seized property (1897), self-incrimination (1964), double jeopardy (1969)
speedy trial (1967), counsel (1963), jury (1966), & other rights of defendants
no cruel and unusual punishment (1962) or excessive bail (1971)

Notice anything about these dates?

Recurring Theme: Where’s the Line?

Can you shout “Fire!” in a crowded theater? Technically, yes! But still, don’t.

When can public money subsidize religious education?

How important is a “well-regulated militia” these days?

Freedom of Religion

Two prongs:

establishment clause: government can’t officially sanction religion
free exercise clause: government can’t interfere with private religious practice

Freedom of Religion: “Wall of Separation”

Who can tell me about the Danbury Baptists?

Danbury Baptists worried about persecution as a local religious minority. Wrote to then-president Jefferson.

Jefferson’s interpretation of First Amendment: combination of establishment and free exercise clauses establishes “wall of separation” between Church and State.

Government regulates public action, but not private beliefs or opinions
Basically, Danbury Baptists don’t have anything to worry about

Another Line in that Letter

Jefferson also wrote that “Belief lies solely between man and his God…the legislative powers of the government reach actions only.”

This line would later be used to allow states to ban polygamy. Later line-drawing re: drug use in religious ceremonies.

Freedom of Religion: Where’s the Line?

Questions that recur in First Amendment jurisprudence:

When is state action overly intrusive? Can states force Amish parents to send their kids to high school?
When is state action “establishing” religion? When can public school employees lead prayers on public school property?
When does religious practice become too “public”? Can a religious hospital strike birth control coverage from its employer-provided health insurance plan that covers secular employees?
What counts as a “religious” belief or practice in the first place? Does conscientious objection to war need to be rooted in traditional religious belief for a draft deferment?

Freedom of Speech

I cannot stress this enough: the First Amendment restricts the government’s ability to regulate what you say.

The government can’t prosecute you for hate speech, but Instagram can remove it. And I can ask you to leave.

Your peers are not constitutionally obligated to respect your opinions.

That’s a matter of norms of civility, not rights to speech.

Early Test-Case: Alien and Sedition Acts

Early focus on “prior restraint” – can’t prohibit speech before the fact, but can punish after the fact.

1798: Alien and Sedition Acts banned criticism of Federalist government

Expired before challenge made it to the Supreme Court

Pretty easy call here: not constitutional.

Later Test Case: Civil War

States (at that time) not bound by First Amendment.

During run-up to Civil War, state-by-state criminalization of criticism of state’s stance on slavery

Later Test Case: Civil War

Lincoln:

Prohibited printing criticism of Union war effort
Arrested newspaper editors, ignored courts
Suspended habeas corpus
Actions found unconstitutional after the war

Where’s the Line?

World War I: Espionage Act of 1917 criminalizes, among other things, leafleting against the war

Schenk v. U.S. (1919): “clear and present danger” test.

Pretty vague!
(This is where “fire in a crowded theater” comes from.)

Bradenburg v. Ohio (1969): direct incitement test. Advocating for illegal action in general is fine; inciting specific and immediate illegal action is not.

Prior Restraint?

New York Times Co. v. US (1971)

U.S. government had lied about extent of Vietnam War
Department of Defense report illegally leaked to New York Times
Government attempted to prevent publication

6-3 ruling in favor of publication with nine separate opinions.

Upshot: government needs a very good reason to prevent publication of true information.

Hate Speech

Relative to other countries, the United States is relatively permissive of hate speech.

You have the right to express ugly sentiments about other groups. But you can’t use that expression to intimidate members of those groups.

Symbolic Speech

Usually, symbolic expression is treated similarly as speech.

Including its limits.

Money as Speech

Court has typically worried more about corruption than inequality in spending capacity.

Buckley v. Valeo (1971): limits on donations to campaigns OK, but limits on independent expenditures are not. Affirmed in Citizens United v. FEC (2013)

How that works out in practice comes later.

Commercial Speech

Used to be much more strictly regulated.

Lying for money still not protected the way lying in other contexts is.

Spam is generally okay with some loose regulations

What You Can’t Say

Unprotected speech:

Written (libel) or spoken (slander) false defamation of character
- Higher standards in U.S. than elsewhere
- Especially high (“actual malice”) standard if speech directed at public figures
“Fighting words” such as threats
Obscenity
- Miller test: prurient interests, “patently offensive,” and lacking serious value
- States/local governments tend to have discretion
- This gets difficult on the Internet

Current Test Case: Age Verification for Pornography

“outsourcing censorship to citizens”?

Break

Reading assignment answers

What’s “incorporation” in the context of civil liberties?

Extending Bill of Rights protections to state laws.

Reading assignment answers

How do Kernell, et al read a right to privacy into the Constitution?

Ninth Amendment / unenumerated rights; liberty implies privacy; enumerated rights create implicit zones of privacy

Reading assignment answers

“Exclusionary rule?”

Illegally obtained evidence can’t be used in court

Reading assignment answers

Why sue Gawker for invasion of privacy instead of libel?

Lower standards of proof (not newsworthy, vs. false with “actual malice”)

Reading assignment answers

Why does the scale of the law pose problems for policymaking?

Requires general rules that can be broadly applied in the future, so it won’t fit everyone’s unique circumstances

Assembly

“Peaceful assembly for lawful discussion cannot be made a crime” - DeJonge v. Oregon (1937)

But! Assembly still regulated:

“traditional public forums” have less restrictions
You likely need a permit to organize a protest that will block traffic

Government and/or counterprotestors may also contest what counts as “peaceful”

Keeping and Bearing Arms

Anti-Federalists worried that national government would disarm state militias.

For most of early U.S. history, gun regulations mostly limited to banning possession by formerly enslaved people.

Keeping and Bearing Arms

National Firearms Act of 1934 in response to a) better technology; and b) organized crime.

Upheld on grounds that 2nd Amendment didn’t protect the right to own any kind of gun.

Individual right to own guns for personal use not established by SCOTUS until 2008 (federal) and 2010 (incorporation to state/local).

Keeping and Bearing Arms

Who can own which guns still contested

U.S. tends to be very skeptical of gun regulation.

We’ll talk about this more during interest groups week.

Rights of Defendants: Article I

habeas corpus: government needs to prove lawful arrest, citizens have right to know what they’re being charged with
no ex post facto laws
no bills of attainder
- Congress can’t pass a law that says you’re guilty of something

Rights of Defendants: 4th Amendment

No unreasonable search and seizure
- What’s “reasonable”?
- When do the police need a warrant?
- Who can (or need to) consent to a search of what?
- What’s a “search” or “seizure” in the 21st Century?
Can’t use illegally obtained evidence
- With some exceptions

Rights of Defendants: 5th Amendment

Grand jury for serious offenses
Right to not self-incriminate
No double-jeopardy
Miranda rights - Miranda v. Arizona (1966)
- Subset of rights against coerced confession

Property Rights: 5th Amendment

Fair compensation if the government takes your land
- What about limits on how you can develop your land?
- Public interest in private economic development?

Rights of Defendants: 6th Amendment

Right to counsel - Gideon v. Wainwright (1963)
- Right to effective counsel
Speedy trial by impartial jury
Right to confront witnesses
- With limited exceptions

Rights of Defendants: 8th Amendment

No excessive bail
No “cruel and unusual punishment”
- Death penalty still up to states, though constitutional restrictions on procedure
- Stricter for minors and people with intellectual disabilities

Unenumerated Rights: Right to Privacy

Or, “right to be left alone.”

Griswold v. Connecticut (1965): married couples allowed to use birth control
- Argues that combination of enumerated rights creates “penumbras” of unenumerated protections
- Extended to unmarried individuals in 1972
Roe v. Wade (1973): Extends right to privacy to include abortion, state bans unconstitutional
- Decades of litigation over how strictly to oversee regulation of abortion
- Overturned in Dobbs v. Jackson (2022)
Lawrence v. Texas (2003): State anti-sodomy laws unconstitutional

Unenumerated Rights: Right to Organize

Freedom of association under the penumbra of rights to speech, assembly, and petition
National Labor Relations Act (1935)
- Upheld under the commerce clause, but opinion recognizes fundamental right to unionize

Challenges for Civil Liberties

Who should decide? Congress? The courts?
Tradeoffs between civil liberties and other considerations?

Civil Rights

Pop Quiz: No phones or laptops

Name fifteen signatories to the Declaration of Independence.
Article IV, Section 3 of the U.S. Constitution states (in part):

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Explain what this means.

Just Kidding

But seriously

Article VI, Section 4. Qualification for registration. Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language.

At the time, carve-out for anyone eligible to vote or descended from someone eligible to vote before January 1, 1867 (“grandfather clause”).

The Right to Vote?

Fayetteville Observer, 1899

The Right to Vote?

When do you think North Carolina’s literacy test became unenforceable?

When did the US become a “democracy”?

The Right to Vote?

The right to vote is, generously, unenumerated.

The Constitution specifies who you can’t keep from voting, but it doesn’t say everyone can vote.

Why is this distinction important?

Civil Rights

The material largely focuses on civil rights for Black Americans and women.

There are reasons for this, but it leaves out a lot.

We’ll come back to this at the end.

A Founding Hypocrisy and Reference Point

Declaration of Independence: “all¹ men are created equal” and are endowed with natural rights.

This is clearly not put into immediate practice. But.

The story of civil rights in the United States is largely a story of marginalized groups acting collectively around this founding principle.

Early Civil Rights Movements

Abolition and women’s rights (including but not limited to suffrage)

The Liberator, American Anti-Slavery Society

Seneca Falls Convention, Declaration of Sentiments

Tensions and affinities between the two movements.

Slavery and the Run-Up to the Civil War

1808: Slave trade clause in Constitution expires

Missouri Compromise (1820): Slavery banned north of 36°

Missouri admitted as slave state
Maine created as free state

Compromise of 1850:

Congress passes Fugitive Slave Act
California admitted as free state
Utah and New Mexico can decide

Kansas-Nebraska Act of 1854:

Kansas and Nebraska established, can decide on slavery
“Bleeding Kansas”
Whigs fall apart, leading to creation of Republican Party

Dred Scott v. Sandford (1857):

Unconstitutional for Congress to limit property rights of slave owners

Civil War and the End of Slavery

Election of 1860:

Emancipation Proclamation: enslaved people in Confederate States free on Jan 1, 1863

Reconstruction: 1865-1877

13th-15th Amendments:

13th: Formally abolishes slavery
14th: Equal protection and due process
15th: Can’t deny right to vote based on “race, color or previous condition of servitude”

Brief military occupation of the South, followed by brief period of (violently contested) multi-racial democracy

Formal (Freedmen’s Bureau) and informal (Union Leagues) institutions promoting Black economic and political advancement.

Jim Crow Laws

Reconstruction formally ended by Compromise of 1877, Southern states move to formally reestablish white supremacy.

In addition to voting restrictions:

Segregation
Anti-miscegenation laws
Protections for private discrimination

Jim Crow Laws

15th Amendment circumvented through the use of “colorblind” policies with clear intent.

White-only Democratic primary elections in South ruled unconstitutional in 1944.

Keele, Luke, William Cubbison, and Ismail White. 2021. “Suppressing Black Votes: A Historical Case Study of Voting Restrictions in Louisiana.” American Political Science Review 115(2): 694–700.

Jim Crow Rulings

Civil Rights Cases (1883):

Narrow interpretation of Civil Rights Act of 1875
Government can’t discriminate, but they can’t force individuals not to

Plessy v. Ferguson (1896): - Separate but equal

Progressive Era (1896-1917)

Technological change, concentration of wealth, and series of political corruption scandals sparked wave of activism calling for increased transparency, accountability, and labor power.

Progressive Era (1896-1917)

Among other social movements/organizations, this is where we get:

NAACP
National American Woman Suffrage Association
American Federation of Labor

Progressive Era (1896-1917)

Among other reforms, this is where we get

Keating-Owen Act (first national child labor restriction)
Adamson Act (eight hour work day for interstate railroad workers)
Secret ballot and the first primary elections (though see above)
17th Amendment (direct election of senators)
19th Amendment (women’s suffrage)

The Lochner Court

Allgeyer v. Louisiana (1897): economic freedom read into due process clause
Lochner v. New York (1905): freedom of contract means freedom to work more than 60 hours/week
Adair v. United States (1908): OKs “yellow dog” contracts that prohibit union membership
Hammer v. Dagenhart (1918): struck down Keating-Owen Act
Adkins v. Childrens Hospital (1923): struck down federal minimum wage for women+children in DC
…and so on, ruling variety of economic regulation unconstitutional

The Lochner Court…vs. the New Deal

U.S. v. Butler (1936): blocks Agricultural Adjustment Act
Carter v. Carter Coal Co. (1936): blocks federal regulation of coal industry
1937: FDR proposes Judicial Procedures Reform Bill
West Coast Hotel v. Parrish (1937): minimum wages for women are constitutional
- Conspicuous swing justice
1938: Fair Labor Standards Act (minimum wage, 40 hour work week, child labor standards)

Implications Beyond Labor Law

Meanwhile, NAACP has been developing legal strategy to challenge “separate but equal”

Gaines v. Canada (1938):

Lloyd Gaines applied to University of Missouri Law School
- Rejected without “equal” separate option
Holding: either admit him or set up alternative
Plessy intact, but tension in “separate but equal” drawn out

Gaines as Precedent

NAACP Legal Defense and Educational Fund

Incremental wins based on Gaines
McLaurin v. Oklahoma (1950): Can’t admit a student then treat them differently
Truman administration wrote amicus brief against Plessy…why?

Cold War Civil Rights

“If the imprimatur of constitutionality should be put on such a denial of equality, one would expect the foes of democracy to exploit such an action for their own purposes. The ideals embodied in our Bill of Rights ridiculed as empty words, devoid of any real substance.”

Cold War Civil Rights

“…a lot of people try to pretend that the whole issue is a creation of Communist imagination.

But they are not fooling anyone with this kind of pretense…Negroes were stirred up long before there was a Communist Party, and they’ll stay stirred up long after the party has disappeared–unless Jim Crow has disappeared by then as well.”

Brown v. Board of Education (1954)

Holding: segregation violates equal protection clause

Brown v. Board II (1955): integration “with all deliberate speed,” to be enforced by federal government

Outside of the Courts

The civil rights movement was/is a social movement as much as a legal movement:

Southern Christian Leadership Conference
Student Nonviolent Coordinating Committee

Constitutional Win

24th Amendment (outlawing poll taxes) ratified in 1964, extended to cover state/local elections in 1966

Legislative Wins

Civil Rights Act of 1964:

Discrimination in public accommodation
DOJ authority to desegregate
Withhold federal funds from discriminatory state/local programs
Established EEOC to monitor employment discrimination
- which is banned if based on race, religion, national origin, or sex
Title VII: sexual harassment is sex discrimination

Legislative Wins

Voting Rights Act of 1965:

Outlaws Literacy tests, grandfather/understanding clauses
DOJ “preclearance” of changes to election administration
- Formula for determining coverage nixed in Shelby v. Holder (2013)
Further interpreted to guarantee minimum minority representation in redistricting

But, Keep in Mind

Voting rights for felons still left to states.

Eubank, Nicholas, and Adriane Fresh. 2022. “Enfranchisement and Incarceration after the 1965 Voting Rights Act.” American Political Science Review 116(3): 791-806.

Parallel Movements for Civil Rights

Equal Pay Act of 1963: employers can’t wage discriminate against women
- Lily Ledbetter Act of 2009: easier to sue employer for past wage discrimination
Title IX of Education Amendments of 1972: bans sex discrimination in federally-funded education

Equal Rights Amendment

Proposed in every Congress since 1923:

Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article

Passed House (354-24) and Senate (84-8) in 1972, quickly ratified by 22 states.

Organization against ERA tied it to Roe, the draft, and traditional gender roles
35 states eventually ratified by 1979 deadline (which was extended to 1982), but 38 needed
Nevada, Illinois, and Virginia ratified more recently

Enforcing Civil Rights

How do we evaluate whether a law violates civil rights?

Variety of legal tests, depending on whose rights are in question.

Degrees of Scrutiny: Intermediate Scrutiny

Strict scrutiny (case involves “suspect classification” of race, ethnicity, religion, or national origin):

law must have “compelling state interest”
be narrowly tailored to that interest
be the least restrictive means of achieving that interest

Degrees of Scrutiny: Intermediate Scrutiny

Intermediate scrutiny (if case involves sex or gender):

law “substantially related” to “important government objective”
means not substantially broader than necessary

Degrees of Scrutiny: Rational Basis

Rational Basis (age, economic status, or other criteria):

is government action “rationally” related to “legitimate” interest?
does policy avoid “arbitrary, capricious, or deliberate” discrimination?

Degrees of Scrutiny: Example

Trump v. Hawaii (2018): upholds temporary ban on immigration from specific Muslim-majority countries

Majority: rational basis test, ban OK due to “sufficient national security justification”
Minority: (among other objections), we should be using strict scrutiny

Native American Rights

We never got a chance to talk about this article.

Native American Rights

After territorial expansion, systematic ignorance of treaties/contracts.

Dawes Act (1887): Authorized government to parcel out land legally controlled by Native governments

90 million acres over 50 years

Recent progress (McGirt v. Oklahoma (2020), e.g.)

Immigrant Rights

Chinese Exclusion Act (1882)
Ozawa v. United States (1922): AAPI individuals aren’t “white” for immigration purposes
United Farm Workers Union: fighting exploitation of migrant workers
DREAMers: rights for children of undocumented immigrants?

LGBTQ Rights

Stonewall Riot (1969)
Social organizations (Lambda Legal, GLAAD, ACT UP)
- HIV/AIDS discrimination and research, insurance benefits, employment discrimination
Lawrence v. Texas (2003): anti-sodomy laws unconstitutional
2010: “Don’t Ask, Don’t Tell” repeal
U.S. v. Windsor (2013): Defense of Marriage Act unconstitutional
Obergefell v. Hodges (2015): bans on same-sex marriage unconstitutional
Present-day activism for trans inclusion

LGBTQ Rights

Disability Rights

Activism toward Americans with Disabilities Act (1990)

Extends Civil Rights Act discrimination protections to citizens with physical or mental disabilities

For Next Class

Moving to Part 2: Institutions

Congress:

Logic of American Politics, Chapter 6
Mayhew, Intro and Chapter 1